Garland Robinette

Garland: Joe Biden, our next President?

by Garland Robinette,posted Oct 30 2012 9:08AM

10.30.12 garland@wwl.com - Monday on the Think Tank I was joined by Dr. Ryan Teten, Assistant Professor of the Political Science at ULL, who specializes in elections and campaigns. Dr. Teten will join me election night to offer analysis; we talked today to preview the race between President Barack Obama and Governor Mitt Romney.

However, in a race that is already razor-thin in terms of polling, Dr. Teten brought up something that floored me.

Forecasters say Hurricane Sandy could wreck serious havoc across one of the most densely-populated areas of our country. Millions may not be able to vote, and the ensuing confusion could also escalate already-simmering charges of voter fraud between the campaigns.

What happens if the whole thing gets tied up in the courts into January, or there's not a majority winner in the Electoral College, or both? Well, according to Dr. Teten, it might mean Joe Biden becomes the next President.

You read that right. Not Obama… not Romney. Biden.

"It's one of the most interesting things that's in the Constitution," Dr. Teten told me. "If there is a delay in picking the president, there is a failsafe. If no one got a majority of the Electoral College, it would go to the House of Representatives. If we don't have results by Inaugural Day (January 20, 2013,) the sitting Vice President of the United States becomes president."

So, if the matter isn't settled by January 20, Smilin' Joe becomes president.

Dr. Teten explained further: "In the Constitution, there's actually separate balloting for president and Vice President. So, what they had assumed, and what the 20th amendment speaks to, if there was some kind of dispute that wouldn't allow the President to be chosen, that the vice-president-elect (would assume the Presidency). But the problem is, because they're on the same ballot right now, we wouldn't have either one. So what happens is you default to the sitting Vice President, because they knew the President could be in the competition. And so you'd be looking at the Vice President becoming the President of the United States until the mess was sorted out.”

Here's the full text of Section 3 of the 20th Amendment:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The text above says Biden would be President "until a President shall have qualified." While that would presumably be when the House of Representatives (or court system) settles on the "winner." Dr. Teten says it may not be so clear-cut.
"Nobody has ever done this before. If we go this route, it could be a serious Pandora's Box."

And, here's an even stranger twist: Could we have a Romney-Biden White House?

The scenario of Joe Biden becoming president outlined above is if there is no majority winner in the Electoral College (a tie,) which is either tied up in the courts and/or isn't resolved by the House of Representatives. The Constitution provides that if there is a tie, then the House chooses the President. (More on this at LATimes.com.)

OK, so let's assume there is a tie...and it's NOT locked up in the courts...and the GOP-controlled House does choose Romney. Who chooses the VP? Well, it's the Democrat-controlled Senate. And if they pick Biden, we'd have a Romney-Biden White House.

Tune in to Garland’s Think Tank Tuesday/today at noon. He’ll follow up with a Constitutional expert about this intriguing possibility.

A professor should know better. He's not reading all of the Constitution.

Joe Biden could not become acting President if the House and Senate are tasked to choose both but fail to do so by noon on January 20th.
Section 1 of the 20th Amendment states: "The terms of the President and the Vice President shall end at noon on the 20th day of January..." There is no exception there. That is a statement of finality. The terms end. Thus at noon on 1/20/2013 if the House and Senate have not chosen a President and Vice President respectively, assuming the Electoral College does not produce a decision, then we have NO ONE in those offices. Biden is no longer VP at that time and thus cannot assume the Presidency.
Instead, we would have to follow the end of Section 3 which you quote: "and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."
Thus Congress would have to pass a law determining who would succeed temporarily. They have already passed this law and it can be found at U.S. Code Chapter 3, Section 19.(http://www.law.cornell.edu/uscode/text/3/19)
According to this law, if no President or Vice-President has qualified and thus there is no one to take office, then current Speaker of the House serves until the problem is resolved. If there is no change in this position on January 6th when Congress convenes and choose it's next speaker, that will be John Boehner.
If there is no Speaker, or if for whatever reason, he/she cannot or will not take office, then the President pro tempore of the Senate is next. Currently, Daniel Inouye of Hawaii serves in this position. If he continues to do so in January, then he would be next up.
Again, if that doesn't work, then we go to the heads of the various executive departments in this order: State - Hillary Clinton, Treasury - Timothy Geithner, Defense - Leon Panetta, Attorney General - Eric Holder, Interior - Ken Salazar, Agriculture - Thomas J. Vilsack, Commerce(vacant), Labor - Hilda Solis, Health & Human Services - Kathleen Sebelius, Housing & Urban Development - Shaun Donovan, Transportation - Ray LaHood, Energy - Dr. Steven Chu, Education - Arne Duncan, Veterans Affairs - Eric Shinseki, Homeland Security - Janet Napolitano. (which is the order in which they were historically created by Congress) It is also important to note, that in the case of Department heads, these are the people who were last confirmed by the Senate and who still serve in that capacity. It is possible one or more may not be constitutionally eligible and thus would be passed over.
Now, here's the whacky part. Most likely, the Speaker and President pro tempore would NOT take the office. That is because they would only serve until Congress chose a President. But in order to serve even temporarily, they would have to resign not only their positions as Speaker or President pro tempore respectively, but they have to resign their seats in Congress as well. Boehner or whomever the Speaker is, having just won (re)election, would not be likely to do so. Inouye intends to run again in 2016 for the Senate, so he would likely not choose to resign and serve only temporarily as President.
That leaves us at Hillary Clinton.
However, she has indicated she doesn't even want to continue as Secretary of State even if Obama wins another term. If she were to refuse the office, Timothy Geithner becomes acting President, and there is little reason to believe he wouldn't take the job.(he is constitutionally eligible)
Thus, if there is no choice by the House as of noon January 20th, Timothy Geithner, not Joe Biden, is the most likely person to serve as the next President until they do make a decision.
However, it is very unlikely to even get that far, since the House votes for President by State, with 26 states needed to win.
Currently, Republicans hold the majority in 33 State delegations to the House. Democrats hold majorities in 14.
There are 3 states that are tied.
There are 5 states where Republicans hold majority by one member, and 3 where Democrats hold such a slim lead.
There are also 4 states where a Republican is the ONLY member from that state and 2 States where a Democrat is the only member.
This means, in order for Obama to win in such a scenario, the Democrats would not only have to hold on to all of their present State majorities, but they'd have to take EVERY Republican slimly held State AND all three currently tied States.
Dr. Teten is correct though, that it is likely we would end up with Mitt Romney as President, and Joe Biden as Vice-President after all is said and done.
The only way we could end up with Biden as President would be if the Senate resolves his office first and selects him as the (next) VP, and the House takes past Jan 20th to choose a President. And then, he would only serve until they do choose someone.

This election is not really razor thin. Romney will when this convincingly. The polls have been historically wrong.

10/30/2012 1:18PM

This means if Gore would have held out in 2000...

He would have become President.
Why-oh-why didn't he?!

10/30/2012 1:37PM

Hope you are kidding about this !

Hope you are kidding about this !

11/02/2012 8:42PM

Carter... Elephants

Reminds me of an old Fred Allen Joke. A kid was telling Fred Allen about all of the products that came from a peanut. When the kid said milk was one of the products, Fred Allen said "Milk from a peanut?... Must have been an awefully low stool."